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Property & Estates Flashcards

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1
Q

Joint Tenancy

A

Two individuals own equal shares
Right of survivorship

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2
Q

Joint Tenancy - Creation

A

TTIP
T – at the same time
T – by the same title (doc)
I – with identical, equal interests
P – with rights to possess the whole
Modern law also requires that the grantor clearly express the right of survivorship

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3
Q

Joint Tenancy - Severance - Sale

A

Sale - Transferee takes as tenant in common, JT intact between non-transferring JTs

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4
Q

Joint Tenancy - Severance - Partition

A

Voluntary agreement to end
Physical division or forced sale

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5
Q

Joint Tenancy - Severance - Mortgage

A

Lien Theory - Most states, mortgage doesn’t pass to other JT
Title Theory - Title is in the mortgage, passes to other JT

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6
Q

Tenancy by the Entirety

A

Marital estate, right of survivorship
Created presumptively in conveyance to married partners

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7
Q

Tenancy by the Entirety - Creditor Protection

A

Creditors of only one spouse cannot touch

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8
Q

Tenancy by the Entirety - Severance

A

Effective via death, divorce, mutual agreement, or execution by joint creditor

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9
Q

Tenancy in Common

A

Co-tenants with individual parts and right to possess whole, no right of survivorship, doesn’t have to be equal shares

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10
Q

Co-Tenant Rights and Duties - Possession

A

Right to possess all, no exclusive possession. Cannot rely on adverse possession.

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11
Q

Co-Tenant Rights and Duties - Ouster

A

When co-tenant wrongfully excludes another from possession of whole or any part; actionable wrong

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12
Q

Co-Tenant Rights and Duties - Rents/Profits

A

Co-tenant in exclusive possession is not liable to others for rent, but must share net profits gained from exploitation of land (mining)
Co-tenant who leases part must provide co-tenants with their fair share of rental income

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13
Q

Co-Tenant Rights and Duties - Costs

A

Each pays fair share of tax, mortgage, and interest costs
Can seek contributions for reasonable, necessary repairs with notice, based on fair share

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14
Q

Co-Tenant Rights and Duties - Unilateral Improvements

A

No contribution required
At partition, improver gets credit equal to value they caused or debt equal to decrease in value they caused

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15
Q

Co-Tenant Rights and Duties - Waste

A

Voluntary – willful destruction
Permissive – neglect
Ameliorative – unilateral change that increases value

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16
Q

Co-Tenant Rights and Duties - Partition

A

Each has right to bring action to dissolve agreement
Partition in kind (division) or forced sale

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17
Q

Co-Tenant Rights and Duties - Encumbering

A

May encumber own interests, but not co-tenants

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18
Q

Landlord-Tenant - Tenancy for Years

A

Known, fixed period of time that terminates on a known date
Must be in writing if 1 year+
Can be terminated on breach

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19
Q

Landlord-Tenant - Periodic Tenancy

A

Continues for intervals until party gives notice of termination (written notice in time intervals)
Express creation: “L to T from month to month”

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20
Q

Landlord-Tenant - Periodic Tenancy - Implied Creation

A

Implied creation: Land lease with no duration but with rent at set intervals, oral term of years in violation of SoF, hold over of tenant who stayed

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21
Q

Landlord-Tenant - Tenancy at Will

A

No fixed period, terminable by either party
Created by express agreement lease can terminate at any time
If “at will” right only given to landlord, one is implied for tenant
Terminated at will, most states require notice + time to vacate

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22
Q

Landlord-Tenant - Tenancy at Sufferance

A

When tenant wrongfully holds over
This allows landlord to recover rent, only until landlord evicts or new lease

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23
Q

Landlord-Tenant - Hold Over Doctrine

A

If tenant continues to possess after right ended, landlord can evict or bind tenant to new periodic tenancy (based on rent payment times)
Tenant, by holding over, acquiesces to any new terms w/ notice

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24
Q

Landlord-Tenant - Tenant Duties

A

Repair (maintain, routine)
Waste (voluntary, permissive, ameliorative)
Pay rent (possession: evict or sue, no self help; no possession: surrender, hold responsible, or relet)
Leasehold condemnation (tenant liability extinguished and leasee gets compensation)

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25
Q

Landlord-Tenant - Landlord Duties

A

Deliver Possession
Covenant of Quiet Enjoyment

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26
Q

Landlord-Tenant - Landlord Duties - Covenant of Quiet Enjoyment

A

Tenant has right to quiet use/enjoyment

Breach by wrongful eviction (actual: excluded, terminates obligation to pay rent; partial: part, relieved from rent payment)

Breach by constructive eviction (substantial interference [chronic/perm], notice from T to L, and T vacates) (T can seek damages) (doesn’t apply if wrongful act by other tenant)

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27
Q

Landlord-Tenant - Landlord Duties - Warranty of Habitability

A

Premises is fit for human habitation; non-waivable
Tenant can move out and terminate lease, make reasonable repairs and deduct from rent, reduce/withhold rent in escrow, or seek money damages.

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28
Q

Landlord-Tenant - Landlord Duties - Latent Defect

A

Landlord knows of thing tenant can’t discover, must disclose
Failure to disclose > liability for any injury from condition

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29
Q

Landlord-Tenant - Landlord Duties - Antidiscrimination

A

No discrimination in sale or rental, negotiate, loan, etc.
Unlawful to do ads that indicate discriminatory preference
Exemptions: except for ads, doesn’t apply to owner-occupied buildings with less than 4 units AND homes by owner w/ <3 homes

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30
Q

Landlord-Tenant - Landlord Duties - Disability

A

Reasonable accommodations – Must permit or make them for disability

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31
Q

Landlord-Tenant - Transfer of Leaseholds - Tenant

A

Tenant may freely transfer interest unless prohibited by lease
If approval required, once landlord consents to one transfer, landlord cannot object to future transfers by that tenant unless reserved right

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32
Q

Landlord-Tenant - Transfer of Leaseholds - Tenant to Assignee

A

Assignee stands in shoes of OG tenant in direct relationship with landlord (privity)
Assignment transfers the entire remaining term of the lease
Original tenant remains liable on the original contractual obligations

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33
Q

Landlord-Tenant - Transfer of Leaseholds - Tenant to Subleasee

A

Tenant of OG lessee and pays rent to lessee
Tenant retained part of remaining term; sublessee has no privity
Sublessee cannot enforce covenants (other than habitability)

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34
Q

Landlord-Tenant - Transfer of Leaseholds - Covenants

A

Covenants run with land if OG parties intended and it touches and concerns
This requires it to benefit landlord and burden tenant or vice-versa

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35
Q

Landlord-Tenant - Transfer of Leaseholds - Landlord

A

Landlord may assign rents and reversion interest they own (deed); no tenant consent required
After notice, T must recognize and pay new owner as landlord

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36
Q

Landlord-Tenant - Transfer of Leaseholds - Landlord - Covenants

A

Benefit of T covenants or burdens of L covenants that touch and concern run with estate to new owner

OG landlord still liable for all covenants in lease (unless novation subs parties to the contract

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37
Q

Landlord-Tenant - Transfer of Leaseholds - Landlord - Tort Liability

A

Common law norm is for tenant to beware, L no duty to make premises safe (except common areas, latent defects, public spaces, or short term of furnished dwelling)
Modern trend is duty of reasonable care, liable for ordinary negligence if L had notice and opportunity to repair

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38
Q

Easements - Defined

A

Grant of nonpossessory interest that entitles holder to use/enjoyment of others land
Presumed to be perpetual unless grant expressly limits interest
Affirmative or negative

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39
Q

Easement Appurtenant

A

Benefits its holder in use/enjoyment of own land
Involves a dominant and servient tenement (land parcels)
Passes automatically with transfers of dominant tenement and of servient estate (unless new owner BFP w/o notice of easement)

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40
Q

Easement in Gross

A

Personal advantage unrelated to use/enjoyment of land
Servient land burdened, no benefited land (billboard example)
Not transferrable unless for commercial purposes

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41
Q

Easement - Creation - Express

A

Requires: memorialized in writing and signed by holder of servient land unless duration brief enough to be outside SoF

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42
Q

Easement - Creation - Prescription

A

Open and notorious, adverse, continuous & uninterrupted for period.

Essentially adverse possession, but possession need not be actual and exclusive

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43
Q

Easement - Creation - Implication

A

Implied from preexisting use: Quasi-easement (use on servient part was apparent & continuous AND parties expected use would survive division bc necessary)

Implied without existing use:
Subdivision (implied easements for streets to access lots)
Profit a prendre (implied easement to extract resources)

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44
Q

Easement - Creation - Necessity

A

When a landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land.

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45
Q

Easement - Termination

A

ENDCRAMP
Estoppel (servient owner materially changes position in reliance on oral)
Necessity (necessity ends unless an express grant)
Destruction (destruction of servient land)
Condemnation (by gov)
Release (given by easement holder)
Abandonment (action intent to never use again)
Merger (title to easement and servient land are vested in one person)
Prescription (servient owner interferes via adverse possession)

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46
Q

Easement - Profits

A

Privilege to enter land and take resources
Rules governing creation, alienation, and termination of easements applies
Can be extinguished through overuse (surcharge)

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47
Q

Easement - License

A

Privilege to enter another’s land for a specific purpose; revocable at will
Personal to the licensee (inalienable, cannot be transferred)
No writing needed (failed attempt to create easement creates license)
Freely revocable unless estoppel applies (invested money/labor in reliance)

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48
Q

Restrictive Covenants - Defined

A

Written promises to do or not do something related to land
If money damages > promise is covenant (vs equitable servitude)

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49
Q

Restrictive Covenants - Successors to Burdened Estate

A

Bound as if they agreed if: Writing, intent (OG parties intended to run), touches and concerns land, horizontal and vertical privity, and notice
Privity: non-hostile relationship between OG parties (horiz.) and successor and OG (vertical)

50
Q

Restrictive Covenants - Successors to Benefited Estate

A

Bound as if they agreed if: Writing, intent (OG parties intended to run), touches and concerns land, and vertical privity

51
Q

Equitable Servitudes - Defined

A

Promise that equity will enforce against successors of burdened land unless successor is a BFP (purchaser for value w/o notice)

52
Q

Equitable Servitudes - Creation

A

Created by writing (SoF), intent for enforcement successors, touch and concern land, and notice (actual, inquiry, or record of covenant)

53
Q

Equitable Servitudes - Implied

A

General Common Scheme Doctrine
Court will apply to hold unrestricted lot holder to common scheme
Requires a general scheme of residential development + notice

54
Q

Equitable Servitudes - Defenses

A

Neighborhood conditions changed > enforcement is inequitable

Unclean hands > Person seeking enforcement is violating on land

Acquiesced > Benefited party allowed violation by burdened party

Estoppel > Benefited party acted so reasonable person would believe covenant was abandoned or waived

Laches > Benefited party fails to bring suit in reasonable time

Termination by written release, merger, or condemnation

55
Q

Adverse Possession - Defined

A

Possession for time can ripen into title bc statute of limitations for ejectment

56
Q

Adverse Possession - Requirements

A

Continuous – Continuous (as owner would do) possession

Open and notorious – Sufficiently apparent to true owner

Actual and exclusive – Gain title to land they actually occupy & not sharing (will get full land if entered under color of title)

Hostile - no permission (disability > will not run at inception of disability)

If AP user violates recorded covenant for period, they take free of real covenant

57
Q

Fixtures Zoning - Variance

A

Permission to depart from zoning restrictions
Must show undue hardship and no diminution to neighbor property values

58
Q

Fixtures Zoning - Cumulative Zoning

A

Creates a hierarchy of uses of the land (rank and categorized)
Land may be used for that purpose and any higher use

59
Q

Fixtures Zoning - Noncumulative Zoning

A

Land may be used only for the purpose for which it is zoned

60
Q

Fixtures Zoning - Special Use

A

Must be obtained even though zoning is proper bc of safety (hospitals, funeral homes, etc.)

61
Q

Condos/HOAs

A

Each owner owns unit + undivided interest in exterior and common parts
Own home in fee simple, own area outside tenant-in-common
HOAs – Each owner a member, board oversees common elements

62
Q

Rights Incidental to Ownership

A

Owner has exclusive right to use/possess surface, airspace, and soil of property

63
Q

Rights Incidental to Ownership - Lateral Support

A

Right to have land supported in natural state by adjoining land

Landowner strictly liable if their excavation causes others’ land to slide

If excavation causes improved land (buildings) to cave in > liable if negligent

64
Q

Rights Incidental to Ownership - Water Rights

A

Riparian Doctrine – Water belongs to those who own land bordering (use enjoinable if substantial interference)

Prior Appropriation Doctrine – Water belongs to state, rights through use

Groundwater – Surface owner can make reasonable use of groundwater

Surface water – Landowner can use for any purpose they desire

65
Q

Rights Incidental to Ownership - Right to Exclude Others

A

Possessor can exclude others and get remedy for invasions (trespass, private nuisance, continuing trespass)
Ejectment to remove trespasser/tenant (can get money damages)

66
Q

Title - Conveyance Requires

A

Conveyance of real estate requires a land contract (equitable title) + deed (legal title)

67
Q

Title - Land Contract

A

Conveys equitable title, and endures until the deed
Requires a marketable title; if closing happens w/o, no suit

68
Q

Title - Closing

A

Deed passes legal title and becomes the operative doc
Gap between these steps is the escrow period
A deed, once it has been delivered, is evidence of title, and its destruction does not cause any change in the title.
To transfer title, must to deliver a new deed transferring title

69
Q

Title - Deed Requirements

A

(1) in writing (2) sufficiently describe land (3) identify grantor and grantee (4) evidence intent to convey and (5) be signed

Inaccurate description of land > specific performance, reduction in price

Oral contract enforced if two acts of partial performance (possession, payment, or improvements)

70
Q

Title - Doctrine of Equitable Conversion

A

After land contract signed, equity regards buyer as owner of real property, buyer has risk of loss

At closing, seller conveys legal title (giving right to possession)

71
Q

Title - Promises in Conveyance - List

A

Marketable title
No false statements
No implied warranties (fitness or habitabiltiy)

72
Q

Title - Promises in Conveyance - False Statement

A

Seller liable to purchaser after closing for defects if false statement buyer relied upon, actively concealed defect, or failed to disclose

Seller must have known or had reason to know of defect; realize buyer is unlikely to discover defect; and defect serious enough that buyer would reconsider

73
Q

Title - Promises in Conveyance - Marketable Title

A

Seller will provide marketable title on day of closing

Unmarketable title: defects in record chain of title (like adverse possession), encumberances (mortgages, liens, easements, etc.), zoning violations, and future interest holders unborn/unascertained, doubt from lawsuits, litigation, etc.

If unmarketable, buyer must notify seller and give time to cure

Seller can use proceeds of sale to clear if buyer protected

74
Q

Title - Performance

A

Buyer’s obligation to pay and seller’s obligation to convey are concurrent. Neither party in breach until other tenders performance.

75
Q

Title - Remedy for Breach

A

Damages or (for unique land) specific performance

76
Q

Title - Closing

A

If buyer permits closing, contract merges with deed and seller only liable for deed promises.

Deed must be executed and delivered (writing signed, description of land, ID of parties, words of intent to transfer)

77
Q

Title - Covenant for Title

A

Deeds used to convey property interest

78
Q

Title - Covenant for Title - General Warranty Deed

A

Warrants against defects in title on behalf of self and on behalf of predecessors in interest

Covenant of seisin (grantor owns), right to convey, against encumbrances, quiet enjoyment (no third party claim of title), warranty (defend against title claims/compensate for loss), assistance (help perfecting title)

First three are breached at delivery if ever (SoL starts to run), other three are breached when grantee is disturbed.

79
Q

Title - Covenant for Title - Special Warranty Deed

A

Warrants against defects in title, but only on behalf of self

Covenant of seisin (grantor owns), right to convey, against encumbrances, quiet enjoyment (no third party claim of title), warranty (defend against title claims/compensate for loss), assistance (help perfecting title)

80
Q

Title - Covenant for Title - Quitclaim Deed

A

Conveys only what the grantor has at the time of the conveyance. Grantor isn’t even promising he has title to convey

81
Q

Recording Statutes - Race Jurisdiction

A

Whoever records first

82
Q

Recording Statutes - Notice Jurisdiction

A

Last BFP to take wins
“without notice thereof, unless the conveyance is recorded.”

83
Q

Recording Statutes - Race-Notice Jurisdiction

A

B wins if B is a BFP and he records properly before A
Subsequent purchaser must not have had notice of prior grant
“without notice thereof, whose conveyance is first recorded.”

84
Q

Recording Statutes - Bona Fide Purchaser

A

Purchaser for value without notice (actual, record, or inquiry)

85
Q

Recording Statutes - Bona Fide Purchaser - Shelter Rule

A

Anyone who takes from a BFP will prevail against any interest BFP would have prevailed against

86
Q

Recording Statutes - Chain of Title

A

Purchaser must record the deed properly within the chain of title

Wild Deed - When a recorded deed is not connected to chain of title, it is incapable of giving record notice. Same as not recording at all.

87
Q

Recording Statutes - Chain of Title - Estoppel by Deed

A

One who conveys something in which they have no interest is estopped from denying validity of conveyance if they eventually get the title they had purported to transfer

88
Q

Mortgages - Parties defined

A

Borrower (mortgagor) gives the lender (mortgagee) a mortgage on property to secure debt

89
Q

Mortgages - Process

A

Involves a promissory note (mortgagor’s personal obligation) + mortgage (agreement that land can be sold to pay mortgagee)

90
Q

Mortgages - Purchase Money Mortgage

A

Extension of value who takes a security interest in the real estate that its loan enabled the mortgagor to acquire

91
Q

Mortgages - Transfer by Mortgagor

A

Can transfer interest by indorsing note and delivering to transferee or executing a separate document of assignment

If grantee assumes mortgage, they are now personally liable to lender

If grantee takes subject to mortgage, no personal liability but land can be foreclosed

92
Q

Mortgages -Transfer by Mortgagee

A

Can freely transfer the note, mortgage follows properly transferred note

If recorded, mortgage sticks with the land; though, recording statutes apply

Mortgagee can foreclose only via proper judicial proceedings

93
Q

Mortgages - Foreclosure

A

Each claimant entitled to full satisfaction before a junior lienholder may take

Foreclosure terminates interests junior to the mortgage being foreclosed, not senior

Junior lienholders can proceed for deficiency judgement against debtor

94
Q

Mortgages - Foreclosure - Priority of Interests

A
  1. Expenses of Sale
  2. Principal and accrued interest on loan
  3. Junior Lienors
  4. Mortgagor
95
Q

Mortgages - Foreclosure - Who is First?

A

First in time, first in right – Creditor who records first takes first

Senior interests: Receive NO proceeds but remain on property

96
Q

Mortgages - Foreclosure - What does foreclosure buyer take?

A

A buyer at a foreclosure sale takes the title as it existed when the foreclosed mortgage was placed on the property.

All interests senior to that one remain on the property, and all interests junior to that one are extinguished.

97
Q

Mortgages - Foreclosure - Statutory Redemption

A

Mortgagor can recover land after sale by paying sale price

98
Q

Mortgages - Foreclosure - Necessary Parties

A

All junior lienholders and debtor

Jr mortgagee must be named bc it has the right to pay off the senior mortgage to avoid being wiped out by foreclosure

Failure to include party > preservation of that claim on the land

99
Q

Present Possessory Interests - Fee Simple Absolute

A

“To A” or “To A and her heirs”

Absolute ownership of potentially limitless duration

Devisable, descendible, and alienable

100
Q

Present Possessory Interests - Fee Simple Determinable

A

“To A so long as the property is used for farming”

Terminates upon happening of stated event; automatically reverts to grantor

Created by clear durational language limiting duration of estate

Devisable, descendible, and alienable

Absolute restraints on transfer are void

Future interest: Reverter in grantor

101
Q

Present Possessory Interests - Fee Simple Subject to Condition Subsequent

A

“To A, but if the land is used for something other than corn then O retains the right of entry.”

Grantor can take action to terminate estate upon happening of event

Created by use of conditional language + explicit right to reenter

Future interest is right of reentry (not transferrable)

102
Q

Present Possessory Interests - Fee Simple Subject to Executory Interest

A

“To A, but if X, then to B”

Terminates upon happening of stated event and passes to third party

Created by a condition + grant to third party

Future interest is shifting executory interest

103
Q

Present Possessory Interests - Life Estate

A

“To A for life”

Measured by the live or lives of persons, never in years

Future interest:
If held by O > Reversion
If held by third party > Remainder

104
Q

Present Possessory Interests - Life Estate Pur Autre Vie

A

Measured by life other than grantees

“To A for the life of B” or if life tenant conveys life estate to another

105
Q

Present Possessory Interests - Life Estate - Restrictions on Tenant

A

Entitled to all ordinary uses and profits, but cannot commit waste

Voluntary (depletion of resources if necessary, suitable only for that, or permitted) (open mines doctrine: if done prior, can mine in open mines)

Permissive (preserve land, pay taxes, pay interest on mortgage)

Ameliorative (future interest holders must consent)

106
Q

Future Interests - Possibility of Reverter

A

Accompanies fee simple determinable

Held by O

Automatically reverts to grantor upon event

107
Q

Future Interests - Right of Reentry

A

Accompanies Fee Simple subject to Condition Subsequent

Held by O

Grantor must exercise his right of entry

108
Q

Future Interests - Reversion

A

When grantor conveys estate of lesser than what they own (duration)

Held by O

109
Q

Future Interests - Contingent Remainders

A

Created in unborn/unascertained persons or subject to a condition precedent

109
Q

Future Interests - Remainders Generally

A

Must be expressly created in the instrument creating the preceding estate

Think of it as: social (always accompany a preceding estate of known, fixed duration) and polite (never cuts short or divests prior taker)

110
Q

Future Interests - Vested Remainder

A

Created in an existing/ascertained person and no condition precedent

111
Q

Future Interests - Vested Remainder - Indefeasibly Vested

A

Not subject to divestment or diminution

Holder is certain to acquire without any conditions attached

Creation: “To A for life, remainder to B.”

112
Q

Future Interests - Vested Remainder - Vested Remainder Subject to Total Divestment

A

Subject to a condition subsequent

Creation: “to A for life, then to B and his heirs; but if B dies unmarried, then to C and his heirs.”

113
Q

Future Interests - Vested Remainder - Vested Remainder Subject to Open

A

Created in a class of persons

Will become possessory but can be diminished by more people

Creation: “To A for life, then to B’s children.”

Class closes when some member can demand possession

114
Q

Future Interests - Executory Interests - Shifting

A

Cuts short interest of someone other than grantor

Follows a defeasible fee, cuts short someone other than grantor

Creation: “To A, but if B returns from Canada, to B and his heirs.”
B has shifting, bc he cuts off A if he returns

115
Q

Future Interests - Executory Interests - Springing

A

Cuts short interest of grantor

Creation: O conveys: “To A, if and when she becomes a lawyer.”

116
Q

Rule Against Perpetuities

A

Future interests are void if there is any possibility that the interest may come to bear (vest) more than 21 years after a person alive at the time has died

Violation of the rule destroys only the offending interest

Steps: determine future interest, what must happen for them to take, find a measuring life (connected to vesting), and when the future interest holder can take (possessory, indefeasibly vested remainder, or vested remainder subject to total divestment)

117
Q

Rule Against Perpetuities - Classes

A

If the interest of any class member may vest too remotely, the whole class gift fails (vesting = class closed and all conditions satisfied)

118
Q

Rule Against Perpetuities - Reform

A

Wait and See – Wait for measuring life to end and then look to see who takes

USRAP: Codifies RAP and provides for alternative 90-year vesting period

Cy Pres Doctrine – Court changes nonconforming interests to match intent

119
Q

Restraints on Alienation

A

Any restriction on the transferability of a legal (not equitable) interest is void.

Disabling (transfers are ineffective) > VOID
Forfeiture (transfer forfeits interest) > valid if reasonable/time-limits
Promissory (transfer breaches covenant) > valid if reasonable/time-limits
Discriminatory (based on race, religion, ethnicity) > VOID

Bar Exam (8 decks)

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